Law Report: Case Summaries

The following notes of judgments were prepared by the reporters of the All England Law Reports.

Children

Re G (a minor) - Fam D (Cazalet J), 18 Dec 1992.

Where there were competing contact and adoption proceedings before the court, on one part by a natural parent seeking contact with the child, and on the other by prospective adopters seeking an adoption order, the court should hear the two applications concurrently in order properly to determine the appropriate order in the light of every available option open to the court when making its decision.

The court allowed the natural father's appeal, set aside an adoption order by the justices in favour of the mother and stepfather, and ordered a rehearing of the adoption application concurrently with the natural father's contact application. The father's application would be heard first, and the adoption rehearing be dealt with in the father's absence, on the basis that the father was not a party to it. At the conclusion of the hearing, the court would have all the evidence of the competing applications and would then be in a position to balance the different considerations and reach a decision on the basis that the welfare of the child was its paramount consideration.

Jane Bridge (Chamberlins, Hitchin) for the father; Deiniol Cellan-Jones (Hawkins Russell Jones, Hitchin) for the mother.

Crime

R v Field - CA (Crim Div) (Russell LJ, Blofeld, Latham JJ), 10 Dec 1992.

Where a defendant was charged with grievous bodily harm with intent, contrary to s 18 of the Offences Against the Person Act 1861, in an indictment which gave no particulars of the manner in which the harm was caused, it was not open to the jury to return an alternative verdict of unlawful wounding, inflicting grievous bodily harm or assault occasioning actual bodily harm, without the indictment being amended either to include further particulars of the count charged or an extra count alleging an offence contrary to s 20 or s 47 of the Act.

Graham Cooker (who did not appear at trial) (Registrar of Criminal Appeals) for the appellant; Warwick McKinnon (CPS) for the Crown.

R v Hilliel & Anr - CA (Crim Div) (Watkins LJ, Tudor Evans, Tucker JJ), 10 Dec 1992.

A defendant should clearly understand before accepting advice not to give evidence that there was a limit to which a judge could properly be expected to go in presenting his defence in the absence of the defendant's evidence.

It was no part of the judge's duty to build up the defence of someone who had chosen not to go into the witness box; his duty was to remind the jury in summary form of what a defendant had himself said about the matter in statements or interviews prior to the trial.

Ian Winter and Michael Butt (Registrar of Criminal Appeals) for the appellants; Michael Hubbard QC, and Alistair Malcolm (Inland Revenue Solicitor) for the Crown.

R v Peart - CA (Crim Div) (Staughton LJ, Waterhouse, McCullough JJ), 22 Oct 1992.

While there was no rule of law that mention of the consequences of conviction in a summing up was always improper and a misdirection, there was always a risk, if a judge did so, that he would be thought to be giving an indication to the jury that it ought to convict. A judge would be wise always to avoid saying anything of that kind, although it did not follow that mention of the consequences of conviction was fatal to the summing up.

A Nawaz (Registrar of Criminal Appeals) for the appellant; R J Edwards (CPS Wolverhampton) for the Crown.

Medical practitioner

McAllister v General Medical Council - PC (Lord Keith of Kinkel, Lord Griffiths and Lord Jauncey of Tullichettle), 14 Dec 1992.

The English rules of evidence applied to proceedings before the Professional Conduct Committee of the General Medical Council wherever in the United Kingdom it sat, and accordingly the law of England applied to proceedings of the committee when sitting in Scotland.

The rules of evidence applicable to criminal proceedings did not necessarily apply to all cases arising before the committee since, although it might be appropriate to apply the onus and standards of proof applicable to a criminal trial where the charges against a doctor would found serious criminal charges, it might not be appropriate to do so where the charges could not be the subject of serious or criminal charges. What was of prime importance was that the charge and the conduct of the proceedings should be fair to the doctor in question.

Jonathan Mitchell QC, (of the Scots Bar) (Le Brasseurs) for the doctor; Julian Bevan QC, and Rosalind Foster (Field Fisher Waterhouse) for the GMC.

Practice

Woodhouse (t/a Latchfords) v Consolidated Property Corporation Ltd - CA (Glidewell, Simon Brown LJJ), 3 Nov 1992.

Where at the hearing of an application for summary judgment under RSC Ord 14, a plaintiff was given leave to amend his statement of claim so as to make a major change in the basis of his claim, he should formally take out a fresh summons under Ord 14. The formality could be waived by treating the original summons as applying to the amended statement of claim, in which case the defendant should be granted an adjournment and the opportunity to adduce further evidence.

If the defendant, appealing against the judge's orders allowing the amendment and granting conditional leave to defend without granting an adjournment, had had ample time to consider the amended statement of claim, had filed an amended defence and was able to adduce further evidence at the appeal without showing special grounds as there had not been a hearing on the merits, then he had not been disadvantaged by the amendment and the main appeal could proceed as if the Ord 14 summons had been issued after the amendment of the pleadings and the further evidence had been filed.

Bruce Mauleverer QC, and Mark Raeside (Beechcroft Stanleys) for the defendant; Stephen Hockman QC, and Adrian Jack (Barrett & Co) for the plaintiff.

Revenue

Capcount Trading v Evans (Inspector of Taxes) - CA (Staughton, Mann, Nolan LJJ), 15 Dec 1992.

For capital gains tax purposes, where assets were acquired and disposed of for currency other than sterling, the consideration given for the assets and the price obtained on disposal had to be translated into sterling, at the spot rates prevailing at the date of acquisition and disposal, to establish a gain or loss. A gain or loss was not ascertained in foreign currency before converting the result into sterling.

Andrew Park QC, (Freshfields) for the taxpayer; Nicholas Warren (Inland Revenue Solicitors) for the Crown.

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